The term “discrimination” has come to have strongly pejorative connotations in our culture. But as Deborah Hellman points out in her admirably clear presentation of the problem, there is nothing wrong per se with discrimination. All laws discriminate in that they favor certain groups over others and treat different people differently. Laws governing the issuance of drivers’ licenses discriminate both in terms of age and of driving ability; but not only is such discrimination not wrongful, it is the very purpose of the laws and it is a purpose that is socially desirable. So the question becomes, as Hellman aptly titles her book, WHEN IS DISCRIMINATION WRONG? Why are some kinds of discrimination taken to be morally troubling and constitutionally impermissible (e.g. racist or sexist distinctions) whereas others are beneficent and others simply neutral? This question is surprisingly neglected given how profound and important it is not just for the law but for politics and morality in general. No doubt a reason for the hesitancy of many scholars to address the question is the difficulty of the philosophical issues raised by this question; at the extreme, some scholars have simply given up altogether on the issue, calling the idea of equality an “empty” one; in doing so however they misinterpret the difficulty of the issue for its ultimate incoherence. Hellman provides us with a clearly written, intelligently argued, and well-informed book / treatise on not only the legal aspects of the question but the moral, political, and philosophical ones as well. She fearlessly dives into some extremely daunting and difficult subjects, such as moral theory, the philosophy of action, and political philosophy; unlike many legal scholars who often try to avoid such issues by implausibly insisting on the “autonomy” of law from philosophy. For Hellman, the question of discrimination is fundamentally a moral one and must be understood from the perspective of moral philosophy. In this she is to be commended for escaping the baneful influence of Legal Positivism, a doctrine that holds that moral questions should be kept sharply separate from legal ones. Hellman’s work is a sophisticated and welcome contribution to this difficult topic.

Hellman’s basic thesis is that discrimination is wrong when it demeans: “it is morally wrong to distinguish among people on the basis of a given attribute when doing so demeans any of the people affected” (p.7). Thus having separate sex bathrooms is not wrongful because neither sex need feel demeaned by being denied access to the other bathroom. This is a case where “separate but equal” is perfectly legitimate, given genuine concerns about privacy and so forth. In contrast, a bathroom which is limited to whites only is wrongful because it is demeaning to [*25] minorities, treating them as of lesser worth. For Hellman, this theory is grounded in the moral principle of equal moral worth or the equal dignity of all people: “to demean is to treat someone in a way that denies her equal moral worth” (p.29). However, demeaning requires not merely an expression of disrespect; for Hellman, also required is “that one’s actions have a certain efficacy”; “one needs a degree of power or status to demean another” (p.35). The first half of the book is devoted to spelling out this idea in some detail, and applying it to well-chosen cases, both real and hypothetical. The idea is an important one, though not without problems, as discussed below.

The second half of her book criticizes other approaches to explaining the wrongfulness of discrimination. In Chapter 4, Hellman argues against the concept of merit as being the basis of the ideal of equal protection. For her, merit is too “unstable” a concept to provide useful guidance, given that there is no way to provide a clear definition of what counts as merit. When casting an actor to play the role of Malcolm X, for example, it seems plausible that being black – looking like Malcolm X – is a legitimate form of “merit” (along of course with good acting skills). But then why is race the paradigm of a non-merit based classification in most other contexts? Her argument is not quite convincing here; it is hard to know what she means by “unstable” but presumably it means that it lacks an objective meaning. But this seems too strong; merit is a difficult concept but not a meaningless one, and it seems no more or less difficult to define than her own concept of “demeaning.” Still, she seems correct that merit, while important, is not the heart of the idea of equality.

Chapter 5 argues that the essential wrong of invidious discrimination is not, as many people might think, the fact that classifications are irrational, i.e. based on criteria that are not well-designed to achieve the end in question. Hellman makes the surprising claim that the “fit” between means and ends simply does not matter morally. The lack of fit is not sufficient to make a classification wrongful, because there might be other values at stake: e.g. to use a fairly inaccurate proxy characteristic because using a more accurate one would be too expensive. This argument is however unconvincing; it does not show that the inaccurate classification is morally irrelevant, only that it may be overridden by other legitimate values. Indeed, it assumes that the classification is at least somewhat accurate, otherwise it would be bizarre to use a wholly inaccurate classification simply because it’s cheaper. Hellman further argues that lack of fit is not necessary for a discrimination to be wrongful either; for example, she says that race is often a good predictor of other traits, including poverty and history of incarceration, but that it would be unacceptable to use it for this purpose.

Chapter 6 is the most problematic chapter, involving the notoriously difficult philosophy of action and intentionality. Hellman argues that the intention of the actor is wholly irrelevant to the moral wrongness of an act of discrimination, indeed even to whether the act is a form of discrimination at all (p.139). Such a view counters both common sense and also Supreme Court doctrine, which has repeatedly held that [*26] there is a crucial distinction between intentional discrimination and mere “disparate impact.” It would require a very strong argument to overturn this, but Hellman does not succeed in that respect. A large part of the problem is her slippage between various meanings of “intention.” She argues that the actor’s intention cannot be determinative given that we are often subject to unconscious biases, so that we may be wrongfully discriminating despite our best intentions. But this argument assumes a controversial and problematic notion of the unconscious (she also uses the term “subconscious,” presumably as a synonym) and also relies on social science data which is based on experiments that are so artificial that they of dubious relevance to the real world. Moreover, even if true, it does not prove the irrelevance of intention. For from the standpoint of moral theory an unconscious intention is morally problematic as well; Hellman confuses the conscious/unconscious distinction with the distinction between intentionality and lack of intentionality. (Her account also slips between the concept of intention in general and the idea of “specific intention,” which is a different thing; and between the ideas of ‘intention’ and ‘motive’ as well (e.g. p.157)).

More broadly, despite relying on the philosopher Elizabeth Anscombe, Hellman makes the very mistake that Anscombe’s Wittgensteinian account warns against: treating intention as an interior private mental entity that is added on to the action. Hellman’s notion of the “act itself” (p.149) as distinct from the intention is simply incoherent. The very idea of an act assumes intentionality; otherwise it is what philosophers call an “event” rather than an action. Her criticism of the Doctrine of Double Effect is also superficial. She mistakenly claims that it originates from Just War doctrine (p.152), and she engages in philosophical forum shopping by selectively citing a few moral philosophers who criticize the DDE. In fact, the criticisms she presents are not convincing (for a detailed defense of the DDE against such criticisms, see my JUSTIFIED KILLING: THE PARADOX OF SELF-DEFENSE, Chapter 5). And her caricature of the intention-based account as being interested only in “finger-pointing” at the wrongdoer rather than engaged in the “important work of providing a remedy for those who are treated unfairly” is simply bizarre. What is especially strange about this chapter is that it is wholly unnecessary to her argument. There would seem no difficulty in saying that the paradigm example of demeaning is the case of intentional demeaning, and that other example (even the unconscious ones) are derivative cases that are still wrongful, though not as obviously so as the intentional ones. Indeed, it is simply common sense that the worst violation of respect, the worst form of insulting and demeaning someone, is the fully intentional one. This is a fight that she need not have taken on. Given the centrality of intention to the law and morality in general, her argument would be even more convincing had she realized that it is entirely consistent with an intention-based morality. But her contention that intention is simply irrelevant is quite incredible.

The most important contribution of this book is the argument that wrongful [*27] discrimination is based in the moral wrong of demeaning someone. Intuitively there seems something right about this. Yet there seem to be many cases where one legitimately demeans another – e.g. dishonorable discharge from the military, or punishment (e.g. declaring someone “unfit for society). Hellman responds that some theories of punishment hold that it does not necessarily demean prisoners, but again she only cites a small number of philosophers who defend this view. However, an even more troubling concern is the vagueness of the notion of ‘demeaning.’ What precisely does it mean to demean someone? Hellman gives a variety of definitions; it is to “put the other down” (p.57); to “express that the other is less worthy of concern and respect” (id.); to treat the other as “second-class person” (p.48); to “disrespect” them (p.36); to “debase or degrade” someone (p.35) or “denigrate” them (p.52). The biggest single concern about her thesis is that these ideas are themselves so vague and in need of explication that they do not seem to provide a useful analysis of the idea of wrongful discrimination. Indeed, many of these ideas are already current in the literature (e.g. the cliché of “second-class citizen”), but they have not proven very helpful in deciding difficult cases. The worry is that this is a case of obscuram per obscuris.

Moreover, there is yet a deeper puzzle. Why does the idea of demeaning have two separate dimensions, the insult and the power or status capable of making the insult effective? If moral theory is the basis for her argument, then it is simply puzzling why there must be this second aspect. To insult, demean, or degrade someone is no less a moral wrong even if one lacks the power to materially affect the person. Those who have little power or status in society do not get a special exemption from the duty of respect for others. A part-time landlord who refuses to rent to people based on their age or sex (young men) does not wrongfully discriminate on Hellman’s account, since his action does not satisfy the power criterion (p.37). Her reasons are somewhat puzzling: apparently it has to do with the lack of power of the landlord, the “expressive” nature of the action, and the fact that young men are not a subordinated group in our society. It is unclear how these reasons work together; if the landlord refused to rent to blacks, presumably it would be wrongful (though she does not say). But why does she think that it is relevant whether those being demeaned “form a group that has been subordinated in our culture” (id.)? Morality clearly requires equal respect for every individual, not merely those who are members in a subordinated group. In Hellman’s theory, these elements seem quite ad hoc and arbitrary. But they suggest that perhaps she is mistaken to locate the problem in moral theory per se; arguably equal protection is a matter of political philosophy instead, here understood as a branch of moral philosophy having to do with the large-scale distribution of power, status, and wealth in a society. This would explain the special role of groups rather than individuals in equal protection doctrine, and also the important role of power and effectiveness. One might suggest then that discrimination law, rather than being grounded directly in the abstract moral principle of equal respect, is specially concerned with a particular political [*28] problem, the famous problem of “tyranny of the majority.”

In any case, Hellman’s work is an important and welcome contribution to the discussion, and is highly recommended for anyone interested in this extremely important and neglected question. One hopes this book will inspire more contributions of equally high quality to this fascinating yet extremely difficult and complex debate.